How Can We Debate Secret Law?

One of the problems with the debate over the necessity and legality of the National Security Agency’s data-mining program is that we’re having it in the dark. The surveillance programs are based on legal arguments delivered in secret by government lawyers to a court that operates out of public view and issues opinions that are classified as too secret for mere mortals to read.

For that reason, 16 members of Congress — a majority of them Republicans — recently filed a supporting brief for a lawsuit by the American Civil Liberties Union to compel the release of declassified versions of the Foreign Intelligence Surveillance Court’s opinions “evaluating the meaning, scope and constitutionality” of the relevant part of the Patriot Act, Section 215.

“We accept that free countries must engage in secret operations from time to time to protect their citizens,” Representative Justin Amash, Republican of Michigan, wrote in the brief. “Free countries must not, however, operate under secret laws. Secret court opinions obscure the law. They prevent public debate on critical policy issues and they stop Congress from fulfilling its duty to enact sound laws and fix broken ones.”
The documents that are being requested, the lawmakers said, appear to involve a substantial expansion of the meaning of Section 215 that is not evident from the law’s text. They said the court’s opinion authorizing the surveillance appears to have “broken significant new legal ground, which suggests that the nation’s surveillance laws may be operating in ways that are not obvious to Congress or the public.”

The brief noted that while some members of Congress have seen those opinions, they are barred by law from discussing them in public.

This has resulted in some strange theatrics. In a recent hearing, Senator Ron Wyden, who was briefed on the surveillance programs, asked James Clapper, the Director of National Intelligence, if the N.S.A. collects “any type of data at all on millions or hundreds of millions of Americans.”

Mr. Clapper replied: ”No sir.”

Mr. Wyden knew that Mr. Clapper was not telling the truth, but he could not say so at the time. Later, Mr. Clapper tried to excuse himself by saying that the question did not have a simple “yes or no” answer, so he responded in “what I thought was the most truthful or least untruthful manner.”

That’s about the level of discourse we are going to get until the government releases the arguments its lawyers made to the surveillance court about Section 215, and the court’s opinion accepting those arguments.